Mitchell Engineering Co., A Div. of Ceco Corp. v. Summit Realty Co., Inc., WD

• Citation: 647 S.W.2d 130
• Decision Date: 21 December 1982
• Docket Number: No. WD,WD
• Parties: MITCHELL ENGINEERING COMPANY, A DIVISION OF CECO CORPORATION, Respondent, v. SUMMIT REALTY COMPANY, INC., Trans-Missouri Builders, Inc., Larry W. Fink and Commerce Mortgage Company, a corporation, Appellants. 33505.
• Court: Court of Appeal of Missouri (US)

Page 130

647 S.W.2d 130

MITCHELL ENGINEERING COMPANY, A DIVISION OF CECO CORPORATION, Respondent, v. SUMMIT REALTY COMPANY, INC., Trans-Missouri Builders, Inc. Larry W. Fink and Commerce Mortgage Company, a corporation, Appellants.

No. WD 33505.

Missouri Court of Appeals Western District.

Dec. 21, 1982.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Feb. 8, 1983.

Application to Transfer Denied

March 29, 1983.

Gordon R. Gaebler of Svoboda & Gaebler, P.C., Kansas City, for appellant Summit Realty Co.

Ronald R. McMillin of Carson, Monaco, Coil, Riley & McMillin, P.C., Jefferson City, for respondent.

Before MANFORD, P.J., and WASSERSTROM and KENNEDY, JJ.

MANFORD, Presiding Judge.

Mitchell Engineering Company (plaintiff and hereinafter Mitchell) instituted this action in two counts. Count I sought enforcement of a mechanic's lien against land owned by Summit Realty Company (defendant and hereinafter Summit). Count II sought recovery of the balance due upon a construction contract from Trans-Missouri Builders (defendant and hereinafter Trans-Missouri). Two other parties were named as having an interest in the land. These parties were Larry W. Fink as trustee, and Commerce Mortgage Company as cestui que trust, under a deed of trust upon Summit's land. Fink and Commerce filed a joint answer in which they declared, "these defendants deny, as of the date of this answer, they have any interest in the property referred to in plaintiff's petition." Neither Fink nor Commerce actively participated in the trial of this cause. Further, there was no claimed interest by Fink or Commerce following the date of the filing of their joint answer, nor did they file a brief or otherwise participate in this appeal.

Trans-Missouri and Summit entered into a construction contract for the building of Summit Plaza Center in Holts Summit, Missouri. This contract was under date of May 22, 1978 and was finalized on August 29, 1978, upon the proposal of Mitchell to provide materials for a pre-fabricated 28,000 square foot building. The total contract price for the building was $75,838.12. There was then a change order and taxes applied to the contract price. Trans-Missouri made a down-payment of $7,828.12, leaving a net balance of $68,551.97. Most of the materials necessary to erect the building were shipped in several loads on October 3rd and 4th, 1978. These first loads included an invoice billing for the entire contract price. Subsequent shipments of shorted or replacement items allegedly took place on October 12, 1978, November 14, 1978, December 18, 1978 and January 4, 1979. Demands for payment by Mitchell were made on December 7, 1978 and February 1, 1979, but nothing was paid in addition to the down-payment. On February 8, 1979, Mitchell filed notices of its intention to file a mechanic's lien on Summit's property. These notices were served upon Summit, Trans-Missouri, Commerce Mortgage and the Chicago Title Insurance Company. On March 8, 1979, Mitchell filed its lien statement with the Callaway County Recorder, and on March 21, 1979, filed its lien statement with the Callaway County Circuit Clerk. On March 26, 1979, Mitchell filed its two-count petition in this cause. On April 28, 1980, Summit moved for summary judgment on the basis that Mitchell's lien statement lacked sufficient itemization to constitute a just and true account as required by § 429.080, RSMo 1978. On July 15, 1980, the trial court sustained Summit's motion and entered summary judgment in Summit's favor. Mitchell appealed that ruling and on June 16, 1981, this court reversed the trial court and remanded the case for further proceedings. Mitchell Engineering Company v. Summit Realty Co., 620 S.W.2d 27 (Mo.App.1981). In that ruling, this court characterized Mitchell as a sub-contractor and further held, relative to the sufficiency of Mitchell's lien statement:

"The obligation of the sub-contractor is to 'include in his lien account an itemized statement of the labor and materials furnished.' Mississippi Woodworking Company v. Maher, 273 S.W.2d 753, 756 (Mo.App.1954). The purpose of the lien statement has been often quoted from Wadsworth Homes, Inc. v. Woodridge Corporation, 358 S.W.2d 288, 291 (Mo.App.1962). Briefly paraphrased, this purpose is to allow land owners and others to investigate to determine if the materials actually went into the building and whether they were lienable items and whether the amount charged is proper.

The statement in this case was sufficient to meet the obligation cast upon Mitchell. From the statement it could be ascertained that Mitchell supplied the material for three of its prefabricated steel buildings with the dimension of the buildings and the manner in which they were to be joined to form one large building. The statement specified those materials not to be furnished by Mitchell.

The trial court erroneously concluded that the lien statement was insufficient. The judgment is reversed and this cause is remanded for further proceedings." Mitchell at 29.

On remand, this cause was retried to the court on October 29, 1981. On December 24, 1981, the trial court entered its findings of fact, conclusions of law and judgment. This present appeal followed.

Five points are presented, which in summary charge the trial court with error because (1) Mitchell's petition failed to state a cause of action because it, in turn, failed to allege compliance with § 429.012, RSMo 1978, which constitutes a condition precedent to the creation, existence, or validity of a mechanic's lien; (2) in holding Trans-Missouri was an agent of Summit because there was no competent evidence to support such theory and the court erred in receiving evidence upon that theory and on the basis that such evidence was an admission; (3) in finding Mitchell's lien was timely filed and that the lien complied with § 429.080 because there was no evidence that the materials were incorporated into the improvement (building); (4) in ruling that Mitchell had a valid lien under a subcontractor theory because Mitchell did not plead or prove a lien under such theory; and (5) in concluding that Summit had waived its defenses by its pursuit of summary judgment for the reason that no competent evidence was offered or received.

Under point (1), Summit argues, in substance, that Mitchell failed to plead and prove compliance with § 429.012, RSMo 1978, which requires provision of a written notice to the property owner subject to the claimed lien. Summit further argues that Mitchell pursued its claim on the theory that Mitchell contracted with Trans-Missouri while the latter was acting as Summit's agent. Mitchell counters by claiming status as a subcontractor, which if established, relieves Mitchell of the duty to supply Summit with written notice prescribed by § 429.012.

Review of Mitchell's petition reveals no explicit language claiming status as a subcontractor. However, the petition does refer to Trans-Missouri as a contractor and as agent of Summit. Summit seizes upon this and argues that Mitchell could not therefore avail itself of a subcontractor's status because it did not plead or prove a lien upon that theory, and further, there was no competent evidence to support the trial court's finding of agency between Summit and Trans-Missouri. Summit further argues that since subcontractor status was neither pleaded nor proven, such status would be inconsistent with Mitchell's claim that Trans-Missouri was Summit's agent because the establishment of subcontractor status and assessment of damages on a reasonable value basis would be proper only upon a theory of quantum meruit or implied contract.

In addressing this issue, it first needs to be pointed out that this court, in Mitchell, treated Mitchell as a subcontractor. If that recognition is found to be binding herein, Summit's contention that Mitchell did not comply with the prescribed notice provision (§ 429.012) is obviated.

Evaluation of the subcontractor issue necessitates a survey of the purpose and nature of our mechanic's lien law. Its overall purpose is to give security to mechanics and materialmen for labor and material furnished in the improvement of an owner's property. It is remedial in nature and should be construed as favorable to those persons as its terms will permit. R.L. Sweet Lumber Co. v. E.L. Lane, Inc., 513 S.W.2d 365 (Mo.banc 1974); Paradise Homes, Inc. v. Helton, 631 S.W.2d 51 (Mo.App.1981). Although such liberal or favorable statutory construction does not relieve the lien claimant of reasonable and substantial compliance with statutory requirements, Farmington Bldg., Etc. v. L.D. Pyatt Const., 627 S.W.2d 648 (Mo.App.1981), a petition to enforce a mechanic's lien is favorably construed and given the benefit of every reasonable and fair intentment. Yamnitz v. Polytech, Inc., 586 S.W.2d 76, 84 (Mo.App.1979). In Otte v. McAuliffe, 441 S.W.2d 733 (Mo.App.1969), it was observed that a contractor's petition to enforce a lien gave the lien claimant status to enforce the lien even though the petition did not "set out the terms of the contract, the amount to be paid under it, the obligations of plaintiff, or even what 'improvements' plaintiff was to construct." Otte at 736.

In Yamnitz, the trial court held the petition insufficient because it failed to allege ultimate facts showing the timely filing of the lien statement with the circuit clerk. On review, that court stated:

"Section 429.180, RSMo 1969, provides that the petition for a mechanic's lien 'shall allege the facts necessary for securing a lien' under Chapter 429. One such requirement, found in § 429.080, is that an original contractor such as plaintiff must file a just and true account of his demand within six months after the indebtedness accrued, i.e., the day on which the last work was done. J.R. Meade Co. v. Forward Construction Co., 526 S.W.2d 21, 28 (Mo.App.1975). Plaintiff's petition alleged that construction...